Naturally, also, in regard to the cases which were tried there, the court of assizes was the court where the most serious crimes were tried there, the court of assizes was the court where the most serious crimes were tried and, therefore, it attracted most notice. What concerns the technical course of events, the demands of work on the staff of the court of assizes were much greater than those on the staff at the special court for, according to the competency regulations of those days, more cases were tried and things were more difficult at the court of assizes than they were with the special court. A man who was within my own sphere of work, with him the question of where to use him was decided from the point of view, not what he would do at the special court, but it was decided by the fact, would he be a qualified man to work at the court of assizes. These facts were of importance in other connections as well and, therefore, I thought it necessary to answer them in greater detail here.
Q.- How many death sentences were passed by the special court at Nurnberg from the 1st of April, 1937, to 1 September 1939?
A. I have thought a long time about that question, and I think I can answer it for certain by saying that during the time from the 1st of April 1937 until the 1st of September 1939, three persons were sentenced to death by the Special Court Nurnberg. Of them two were pardoned, and only one was executed.
Q. Can you tell us briefly what those cases were about?
A. There was the Schlamminger case which had occurred in the Bayrische Wald, and these were the facts of the case. Schlamminger who one might describe as an archaic person, that is to say, good and evil were side by side with him. During the confusion of the times, he developed confused religious ideas, and on account of that he arrived at a decision which in its execution could not be understood probably at first. Without having had any quarrels with any definite people, one night he climbed up the wall around the graveyard and fired shots into the bedroom of a policeman in the house opposite. He used a gun which he has admitted himself that he did so, and he was aware of the fact that in certain circumstances the people who were sleeping there might be killed. The ammunition however did not reach them because contrary to the expectations of the offender, the couple -- the policeman and his wife -- had not yet gone to their bedroom. During the same night, he made the same attack on the school master in that billet. He was the Ortsgruppenleiter of the Party, but here he did not use a place of hiding which was favored for his plan. He had to fire his shot from down below, and the ammunition went straight into the ceiling instead of getting into that part of the room where the people were. That was one case. We sentenced the man to death, and then clemency was exercised, and he was sentenced to ten years' imprisonment. The other case has been mentioned here frequently, and I think it is enough if I just use a slogan in reference to that case, particularly as we have to refer to it again later.
And I am talking of the Hellers who carried out street robberies here in Nurnberg with a car trap. And I am talking about the Heller Muendel case. Both were sentenced to death, but Heller's death sentence was changed because she was expecting a baby.
THE PRESIDENT: Was that Muendel?
DR. KOESSL: That case was mentioned in Dr. Kunz's affidavit.
A. There were the two death sentences which were passed by the Special Court Nurnberg between '37 and '39. And in the case of two defendants, clemency was exercised.
BY DR. KOESSL:
Q. What offense played the main part in the Special Court at that time?
A. The offense which played the main part in the Special Court in those days was the so-called offense against the Malicious Acts Law, malicious remarks and inciting remarks against the National-Socialist State against its institutions or against certain groups of persons. The best way to characterize them is to describe them as the political talk on an insighting or malicious basis, political tittle-tattle. Offenses against the Malicious Acts Law in that form constituted, I believe, 90 percent of all the cases which came to the Special Court before the war, but one must not think that offense had the largest form them in Germany. According to my recollection, and I do not believe that my memory serves me wrong here, the entire number of cases at the Special Court per annum amounted to approximately 120 cases. Viewed from the purely technical angle, those offenses were offenses which did not cause a great deal of work. The facts of the cases consisted entirely of tittle-tattle.
THE PRESIDENT: Your figure of 120 cases also relates, does it, to the period '37,to '39, or to what period? '37 to '39.
A. What I meant to say was before the war and the figure I gave was per annum.
THE PRESIDENT: Thank you.
A. The work caused by these offenses was altogether out of proportion compared with the number of cases that came before the Court of Assizes. At the Court of Assizes every month we spent a fortnight working on those cases, and we had decisions every day.
DR. KOESSL: May I now tell the Tribunal that Exhibit 222 gives the fact about the Schlamminger case, and the Heller-Muendel case is contained in Exhibit 233, Mr. Kunz's affidavit.
BY DR. KOESSL:
Q. What was the average scope before the war, the average scope of the sentences?
A. Naturally it happened every now and then that there was a particularly difficult case like the Schlamminger case or the Heller case, but they were the exceptions. Normally we were concerned with the offenses against the Malicious Acts Law. And concerning both offenses, the scope of the sentences, that is the way I should like to put it, in itself was one year to five years imprisonment; but in the case of a sentence up to three months the prison sentence could be changed to a fine. And I should also like to say that almost without exception the sentences were below the limit of one year, and that the average, that is to say, if one includes all the light cases and the serious cases, was something like 4 to 5 months. That is evident too if one bears in mind that there were many ordinary, simple cases which occurred. At any rate, the sentences in many cases were more lenient than other courts.
Q. When the post of the vice president was under discussion, were any death sentences passed at this Special Court?
A. The reason why you asked this question is -- and that is connected with this entire group of questions -- because the witness Miethsam in his affidavit and also in his testimony as a witness here spoke of the post of vice-president at Nurnberg, and he said that I had been wanted because of my severity concerning the sentences which I passed. One must point out that the problem of the vice-presidency of Nurnberg became topical as far as I remember somewhere around the turn of the first to the second half of the year 1938. That is to say, at a time when perhaps we had not passed any death sentences yet.
Q. What about the discussion about the jurisdiction of the Special Court?
A. Miethsam spoke here very vividly, so vividly that one might believe that all the things of which he spoke were witnessed by him personally. He spoke as if he personally had sat in my courtroom, and listened to my method of conducting a trial, and as if he had read my sentences, all the sentences which were passed within my sphere of activity. He was so lively, so vivid in his description that he was liable to confuse one. Miethsam never in his life read a sentence passed by me or one of my assistants, nor did he ever spend one single second of his life in a session of the Special Court at which I was presiding judge. His knowledge was based exclusively on the information which he received from Herr Doebig, not that Herr Doebig was perfectly informed about the events of the Special Courts at Nurnberg, for he was the superior authority of the court to which the Special Court of Nurnberg belonged. He obtained his information about the events at our Court, in parti cular, for the reason that I forwarded to him every sentence which was passed by the Special Court and forwarded it to him through the fastest channels together with the opinion so that he should always be able to inform himself exactly and speedily about the events which occurred at our court.
Q: Were you under any obligation to submit to him every sentence which was passed within your sphere of work?
A: I was not under an obligation to do so. Naturally, as my superior officer, he had the right to ask to see sentences and to examine them for official reasons, but there was no obligation for me as the presiding judge of the special court to put his work before him as superior.
Q: Why did you submit the sentences to him?
A: The reason was that in view of the nature of those sentences it was always possible that some authority might bother about some matter or other. Those authorities in that case would not have approached me but they approached the superior authorities and that was, in my case, Doebig, the president of the District Court of Appeals. We submitted the sentences to him so that he at any time should be properly informed about the occurrences within our sphere of work. So that in case inquiries or criticisms should reach him, he should be able on his own to reply and reply properly.
Q: Did you not have to expect him to make your sentences a basis for taking steps against you?
A: The fact is that Doebig, as he said here himself, and that was a complete secret to me at the time, for years did complain about me to the Reich Ministry of Justice. If anything had occurred, he could easily have passed on to the Reich Ministry of Justice the sentences which I had submitted to him and he could thus have demonstrated by a concrete case the occasions where we, in his opinion, had made mistakes, or had been too severe. But what is curious is that neither, according to his testimony nor to that of Miethsam, Doebig ever deemed it necessary to forward the material, which he had handed to him on a plate, to the authorities at the Reich Ministry of Justice, and that Miethsam neither felt the need to do so although he took measures against me as a judge only in one single case to read such a sentence.
Q: In Exhibit 156 the Witness Engert says that you extended your position at the special court in Nurnberg on account of your relationships and that it was through that that you built up a powerful position.
The Baur affidavit, Exhibit 157, mentions his close contacts with the Gauleiter. The Gross affidavit, Exhibit 221, maintains that you had contacts with the highest political dignitaries and states that you had conversations with them.
The affidavit by Ostermeier, Exhibit 222, the Groben affidavit, Exhibit 224; the Rauh affidavit, Exhibit 225; the Kunz affidavit, Exhibit 233 also refer to your allegedly big political position. They mention ties with Streicher. The Doebig affidavit, Exhibit 237, makes mention of your position as Gau Group leader for prosecutors and attorneys and also mentions your alleged big influence on promotions. It mentions your relations with Haberkern and the table at the Blaue Traube, the so-called source of your political information.
Furthermore, via Haberkern, you arc supposed to have an oar lent to you by the highest political agencies and through him you are supposed to have enjoyed their favor. It also asserted that at the Blaue Traube, where you discussed with the men whom you knew well, matters of the Administration of Justice, Wilhelm Hofmann, Exhibit 476, asserts that you had exerted your will power via Haberkern and the Gauleiter, if no other way was possible, and that you had had many talks on those matters at the Blaue Traube.
The Miethsam Affidavit, Exhibit 482, charges you with having been servile to the Party and with having been a political fanatic. Would you please tell the Tribunal what was your official relation with the various persons whom I have mentioned and also whether and to what extent those persons know something about your private life?
A: The question is aimed at finding out whether those persons who testified here were at all in a position to make observations which gave them any knowledge concerning the assertion which they have made. It may be of importance in this connection to mention that not one of those people lived in the part of Nurnberg where I lived and that barring a very few exceptions I only met them in passing sometimes at intervals of one to two years, and that outside my official duties. And I can only be surprised as to how they obtained information which they divulged here in a manner as if they had been present and had seen everything with their own eyes and heard everything with their own ears.
In reality that was not possible for them. My official relations with the various individuals -- well, first of all, I think it is important to say who of those persons ever came to my home and the only one who came to my home is Ferber, who was a witness here. And he did not come to my home when I was there, but he looked in. That was Christmas 1944. Ferber, to do me a favor and to make Christmas 1944 pleasant for me, brought to my home a small case of wine and also two bottles of vermouth. He did not allow me to pay for them and he especially pointed out that those bottles were meant to strengthen the old ties of friendship. That was four months before the catastrophe.
My official relations with Engert were the following: At first Engert was an associate judge at tho special court with me and ho was also my deputy. Later on he became senior public prosecutor with the general public prosecutor and he, therefore, had official relations with my sphere of work.
Gross came to Nurnberg about the middle of 1942 and he came as an associate judge. As far as I know he was a member of tho special court until the end. Ostermeier was also an associate judge at my special court.
As far as I can remember he came in 1940 or 1941. He was promoted then to be Oberamtsrichter and division chief at the local court at Nurnberg. Groben was an associate judge at the special court in Nurnberg, from October 1941 until he was called up for service with the armed forces, and I don't remember the date of the call up. Ferber was in Nurnberg when I assumed office. He was with the public prosecution at Nurnberg. Later on he was associate judge of the special court and he acted as my deputy. While I was still in office he was promoted director of the district court, but he remained within my sphere of work. On the 1st of May, 1943 he became my successor.
Rauh, -- we only used him in emergencies as a deputy every now and then. He only attended sessions without in any way participating in the work of the special court, without participating in writing the opinions.
Hofmann, Wilhelm, was first public prosecutor with the Nurnberg prosecution. For some time he deputized for the senior public prosecutor because that post was left vacant for some time. He also deputized for the senior public prosecutor later on when the senior prosecutor was away.
Baur, was the court physician at the district court -- or rather, he was the auxiliary physician at the district court. He had to attend to his official duties at our court, but he had no official relationship with the administration of justice authorities. He was subordinated to the minister of the interior. The same applies to the witness Kunz. The witness Doebig, at the time when I assumed office at Nurnberg, was the general public prosecutor with the district court of appeals at Nurnberg. In the autumn of 1937 he became president of the District Court of Appeals in Nurnberg.
Miethsam was Ministerialrat at the Reich Ministry of Justice, an the personnel department. He had no immediate contacts with the special court at Nurnberg.
Elkar was assigned to me for training when he was referendar. Later on he was a full time Hauptsturmfuehrer with the SD. My private relations with these people, about which questions have been put, are as follows: With Engert and Ferber I entertained relations of the nature of being acquaintances -- closer acquaintances. We frequently met; we understood each other very well; we got on very well.
Concerning Gross, Ostermeier and Groben -- I had practically nothing to do outside of official contacts. The same is true of Rauh, Hofmann, Baur and Kunz did not play any part in my private life. Anyhow, they were doctors, physicians, who were used to going their own way. Miethsam -I did not know Miethsam at all, nor did I entertain any relations with Doebig outside official duties. Elkar, perhaps in those days was -- perhaps I should put it this way -- the referendar who was most attached to me. He joined my circle frequently when we went to pubs.
Q.- Who of the people you have just mentioned was able to observe with Whom you entertained relations?
A.- I would like to answer that question in a general way by saying that Nurnberg was a city of about 400,000 inhabitants. It was a matter of course that people who lived as far apart as we did here, all in residential areas, it was natural that for months sometimes we didn't meet outside official duties. The few people whom one saw frequently are those I have already mentioned; those one met at a pub or some restaurant. It think that is the custom everywhere in the world. As concerns any insight into my private work or my social intercourse, such an insight those people could not have had, and normally I wouldn't expect them to be interested in it, unless even in those days they wanted to look out for things that might be useful to them in present times. Those men at that time didn't believe in the defeat of Germany any more than I did.
Q.- How do you explain these statements?
A.- The explanation is quite natural and can be stated quite dis passionately but I would like to emphasize that my character would not allow me to take that way myself.
Today all these people are in some relations or other -- this is the way I would like to put it. People who were in some relations or other with the special court at Nurnberg, apart from me, and they are charged with having had those relations with the Special Court in those days. Therefore, it is very much in their own interest to ascribe to me some fantastic behavior, or that I held some mysterious position, so as to eliminate or minimize their own responsibility. For that purpose, in a manner which is incomprehensible to me, certain conclusions have been drawn which were brought about under the impact of the catastrophe, assertions which have lead these people to believe that they can now present those conclusions as if they were facts. They live in the hope -
THE PRESIDENT: May I interrupt you. You have been a judge for a long time, and you know that, as a witness, you are entitled to set forth any facts which you may have in your possession which would tend to show the lack of knowledge on the part of witnesses who have testified against you; or, any facts which would tend to show their prejudice. But you also know, as a judge, that it is for the Tribunal and not for another witness to appraise the weight of their testimony or to express an opinion as to the motives which may have actuated them. I think you should limit yourself to statements of fact, as you have largely been doing, which will show their sources or lack of sources of knowledge, or facts showing their prejudice.
We will take our recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. KOESSL:
Q. May I continue?
By the questions which I am going to put to you new I wish to find out whether you belonged to the part of the corps of the political leadership which has been declared as criminal, and next I want to ask you about your personal relations with the party leadership. To whom and at what time did you apply for membership in the Nazi Party?
A. As far as I know, from the 1st of May, 1933, until the 1st cf May, 1937 the Party was closed to new members. At least, in large parts. Concerning our area here, at any rate, during the time from the 1st of May, 1933, until the 1st of May, 1937, no new member were admitted into the Party. However, on the 1st of May, 1937, the Party opened its ranks again and already, during the preceding months, operations were started so that Party members could enroll as from the 1st of May, 1937, and that, concerning those persons who had applied for membership prior to the 1st of May, 1937. I made my application in the Fall of 1937 and I applied to the local Ortsgruppe which was competent for my residence that was Lichtenhef/Nurnberg.
Q. Why did you make that application?
A. First of all, I wish to answer by using a negative expression. Nobody forced me to do so. Nobody urged me to do so, nor was I under any pressure of any kind, but I applied of my own free will.
I haven't finished yet, council.
At that time, that is, in the Fall of 1937, as I have already stated, the political developments had reached the stage where the Nazi Party h d become the integral component of the German state. I was a judge and a civil servant in that state. I had to serve that state, and since the overwhelming majority of the German people had professed their adherence to that state, it was a matter of course to me to profess my adherence to that state also. If I had not wished to do that, that is to say, if I had not wished to do that for all time, then, in all deceny I could no longer have made available my services to that same state, but that did not mean at all that, as a citizen of that state, one had to worry every much about developments and it certainly did not mean, by a long way, that one approved of matters which were contrary to the law or that one approved them simply because they were connected with some National Socialist authority.
Such servile development had net yet applied and that was due to my basic attitude to the effect that the matter wasn't very urgent. One day, Denzler, the Gaurechtsamtsleiter, who was competent for our court, called on me and told me that the time had come for me to see to that matter. That was the outer reason why I then took that natural step.
Q. I'm now going to show you a small red bock. Please look at the heading and, on page 56 and the following pages, please read out articles 1 and 11 of the law which appears there.
A. This book is called "The law of the NSDAP, the Nazi Party." A compilation of regulations, with annotations, etc., edited by Dr. C. Haidn and Dr. L. Fischer. It was compiled in the year - it says: "Berlin, the Fifth Anniversary of the Seizure of Power by the National Socialists." That is to say, it was in 1938.
Q. Will you please turn to page 56?
A. On age 56 there appears Law B, "Law for the Guaranty of Unity between Party and State."
Q. Please read out Articles 1 and 11 of that law.
A. It says.
"Article I. After the victory of the National Socialist revolution, the National Socialist German Workers' Party is the bearer of the concept of the German State and is insoluably united with the State. It is a corporation of public right. The Fuehrer decides on its provisions.
Q. And article. 11, please?
A. Article 11 says:
" For the guaranty of the closest cooperation of the authorities of the Party with the public authorities, the deputy of the Fuehrer is a member of the Reich Government."
Any more?
Q. That's enough.
That law ans that state of affairs - do they explain your entry into the Party?
A. Well, yes. I have already said that before.
Q. Did you know that Party program?
A. Naturally, I know the Party program for it appeared in public everywhere. In this building here, the administration of justice had put up placards. The party program appeared framed bigger than a human being. That's natural that one should have read it.
Q. Did you know that Book "Mein Kampf"?
A. I knew the book.
Q. When did you get that book?
A. It was given to me as a present by somebody. I am sure that was after I joined the Party.
Q. What importance did you attribute to the book?
A. Unfortunately, I must say that I never had time to read the whole of the book, but I did read portions of it. My view is that in 1933 the bool had only 50 percent of the importance which was attributed to it when if first appeared. And later n in 1935 or '38 the book had lost its topical interest, and that for the more resign because the subjects which were delt with in the back had become outmoded. In my view, the bed continued to be sold and mere people bought it because it was the book by the Fuehrer of the German Reich. I am convinced that this beck, if Hitler had not assumed power, certainly from 1933 onwards, would hardly have been obtainable at all in the bool clubs. It was the work of a idealist which, as I have said before, was outmoded by the times, and thus ufferes the fate which every political book suffers to a larger or smalller entent.
Q. Did you knew Rosenberg's bed, "Lyttes des 20 Jahrhrnderts"?
A. The book was mentioned once at this trial in connection with the testimony of the witness Schosser. The book, "Mythes des 20 Jahrnunderts" - as on my book shelver, and I am sure I read some of it, but again I must say that I definitely didn't read the whOle of it; but one thing I can say and that is significant for the idea that are abroad on such matters, that the conception "Blut und Boden", Beed and Soil, is not mentioned in that book, nor does it have any parallel commands which is supposed to be parallel to these of the Bible. The witness there get confused between Rosenberg and Ludenforff. Put that confusing element could be observed everywhere. I didn't buy that beck myself; an acquaintance of mine gave it to me probably he gave it to me on my birthday;
but by that I do not mean to say that I was hostile toward the Nazi party because I didn't even possess Rosenberg's book.
Q. What is your attitude to that book?
A. That depends on the question of my attitude to Ludendorff. I shall have to go into that question more thoroughly later. By Ludendorff and his movement, before and after the seizure of power, Rosenberg was attacked, and in particular in his book "Mythes des 20 Jahrhunderts" he was attacked there very severely and was repudiated not so much because of its contents as on the peculiar method employed. Because by that bool an attempt was made under the cover of gennine philesphy -- to make political transactions. That, at least, for the world of science in Germany, was a peculiar and altogether novel method. But by that, one did not serve philosophy or for any length of time the political aims.
Q. What was your basic attitude when you joined the Nazi Party?
A. That question has arisen several times, and I believe I have already answered it to the effect that I, in the Nazi Party, saw an integral factor of the State.
THE PRESIDENT: I think you answered that. We have your answer.
BY DR. KOESSL:
Q. Did you belong to any formations or associate organizations?
A. Those concepts, formations and affiliated organization, several times have played a part in this trial, and according to what I could understand, they have not yet been properly explained. Formations and affiliated organization are not one and the same thing. They are organizations which did not have the same relations with the Nazi Party.
Q. Witness, would you a on the little red bed on page 75? Would you read the headline on page 73?
A. It says:"Decree fer the Execution of the Law of Guaranteeing Unity between State and Party."
Q. And Article 111?
A. Article 111 says: "The NS German Doctors League, Incorporated the League of National Socialist German Lawyers, Incorporated..." That in the organization which later on became the Lawyers league. The first name given to that organization was League of National-Socialist German Jurists and afterwards it was rented "Rechtswahrerbund" the lawyers League. There follow several other organization: NS Teachers Association, NS War Victims Association, NS Public Welfar League, Reich League of German Civil Servants, NS League of Technicians, the German Labor Front. They are the association affiliated with the Nazi Party.
Q. There are two footnotes. I will ask you to read first note 2 of the German Jurists conference in 1936 by the Reich Leader of the Reich Leader of the Reich Legal Office was given the name National Socialist lawyers Association."
Q. Now, will you read Note 5, please?
A. Note 5 says. "The affiliated organization National Socialist corporations. Article 17, Sectional, of the first executive order appears on page 96. Politically the Nazi Party will take care of them, but they possess their own property and their own legal status. They come under the financial supervision of the NSD-P Treasurer. Article 5, Section 2, Executive Order. The political supervision is carried out in this form with the Reich leadership of the Nazi Party. Offices are established with the task to assume political leadership over the affiliated organizations."
Q. Now would you please read note 3, referring to Article 2 on page 74?
A. These were the so-called affiliated organization. The Formations have to be differentiated from them. The passage. which I am now to road treats-the subject. "The formations, 'Gliederungen', are a part of the Nazi Party without possessing a legal status of their own and property of their own. Article 4, Section 1 and 2. They have fulfill special tasks, but they are completely at one with the Nazi Party and need neither an existence of their own in the political nor in the legal field.
The heads of the formations are combined in the Reich leadership of the Nazi Party and are based there. The Chief cf Staff of the SA, The Reich Leader SS, the Reich Youth leader are Reich leaders cf the Nazi Party. The other formations too are subordinated to the Fuehrer or the Fuehrer's deputy and they are subordinated to him immediately."